Claimant has moved for summary judgment in this claim brought to recover the
cost of repair of a typewriter alleged to have been damaged due to the negligent
handling of the item by defendant. The proponent of a motion for summary
judgment must make a prima facie showing of entitlement to judgment as a matter
of law, tendering sufficient evidence to demonstrate the absence of any material
issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).
Once this showing has been made the burden shifts to the party opposing the
motion to produce evidentiary proof in admissible form sufficient to establish
the existence of material issues of fact which require a trial (Alvarez v
Prospect Hospital, 68 NY2d 320).

In support of the motion, Claimant has submitted an affidavit in which he
alleges that he purchased a new typewriter in January 1999 while incarcerated at
Coxsackie Correctional Facility. According to Claimant, in September 1999 he was
transferred to another facility and during the processing of his personal
property the typewriter was, over his objection, placed at the bottom of a draft
bag by a correction officer. When he was again given access to the typewriter
in October 1999 he discovered that certain functions of the typewriter did not
work properly although, he maintains, the machine had not malfunctioned prior to
being packed in September 1999.

A motion for summary judgment is the procedural equivalent of a trial (Koen
v Carl Co., 70 AD2d 695). Where, as here, the only evidence submitted in
support of the motion is the party's own sworn statement, the issue of
credibility is for the trier of fact and a court should not grant summary
judgment on the basis of self-serving statements, especially when the statements
relate to matters within the exclusive knowledge of the moving party (Denkensohn
v. Davenport, 130 AD2d 860, 862). The allegation that the typewriter was in a
damaged state after shipping could be verified and therefore, is not within the
exclusive knowledge of Claimant. However, the statement by Claimant that the
typewriter was not damaged before shipping is self-serving, and within his
exclusive knowledge, in the absence of an allegation that defendant checked the
condition of the machine before packing it for shipment. Though the allegation
may ultimately be credited, the truth of the statement should be judged after a
trial where the court has had the opportunity to observe the witness.
Accordingly, the motion is denied.

August 16, 2000Saratoga
Springs, New York

HON. THOMAS J. MCNAMARAJudge of the Court of
Claims

Papers Considered:

1. Notice of Motion for Partial Summary Judgment dated May 15, 2000.

2. Affidavit in Support of Claimant sworn to the 15th day of May, 2000 with
exhibits annexed.